§ 41 Mr. Hector Hughes
asked the Secretary of State for the Colonies (1) if he is aware that the new Regulations relating to criminal proceedings in Kenya which prevent or limit the preliminary hearing of a charge before a magistrate, or magistrates, and which direct that such a charge must go direct to the High Court for trial are contrary to the principles and practice of British law; and if he will make a statement on the subject;
(2) what principles of law or justice are to be applied under the new Regulations promulgated in Kenya relating to criminal proceedings by the Attorney-General of Kenya, or other Agent of the Crown there, in granting or refusing his certificate that a criminal charge must go direct to the High Court without a preliminary hearing before a magistrate;
(3) if he is aware that the new Regulations relating to criminal proceedings which have been promulgated in Kenya designed to reduce delay in executing capital sentences there, prejudice the right of convicted persons to appeal; and if he will make a statement on the subject.
§ Mr. Lyttelton
I am aware that the procedure permitted by the Kenya Emergency (Criminal Trials) Regulations, under which a preliminary hearing before a magistrate can be dispensed with by a certificate from the Attorney-General, 1237 Solicitor-General or Deputy Public Prosecutor, is a departure from the normal practice of British law. The hon. and learned Member is, however, wrong in thinking that this is contrary to the principle of English law since it is open to the Attorney-General of England, by virtue of his office, to file a criminal information which would bring an accused into the Queen's Bench without an inquiry prior to commitment.
The intention in making the Regulations is to shorten the period between the apprehension and sentence of persons convicted for offences arising out of the present emergency in order that the full deterrent effect of the sentence may be felt. The trial of accused persons by the Supreme Court will follow the same procedure as if a preliminary inquiry by a magistrate had been held, and the accused will be supplied at least seven days before the date fixed for the trial with a list of the prosecution witnesses and a statement of each witness's evidence.
I recognise that the defence will lose the advantage of cross-examination of prosecution witnesses and of adducing evidence in a preliminary hearing, but I am satisfied that no miscarriage of justice will result from the Regulations. The Law Officers of Kenya will obviously not issue a certificate for trial under these Regulations unless they are satisfied that there is at least a prima facie case against the accused.
The Regulations reduce the time taken in proceedings only by shortening the period before the hearing of the case by the Supreme Court. The period between sentence and execution remains as before and the right of appeal is thus not affected.
A copy of the Regulations has been placed in the Library.
§ Mr. Hughes
Does not the right hon. Gentleman agree that during the present emergency one of the most essential things in Kenya is to inspire in the Africans an appreciation of British law and justice? Does he not think that making changes of this kind in the middle of the emergency, ad hoc, is calculated to inspire the very reverse feelings in the Africans and to make a settlement in Kenya still more difficult?
§ Mr. Lyttelton
The hon. and learned Gentleman's law is a little rusty. As I have already told him, there is nothing contrary to the principles of English law in what is being done. It is contrary to the practice, but Kenya has an emergency which does not exist in this country.
§ Mr. Paget
Is the right hon. Gentleman aware that where a defence is deprived of the opportunity to see the witnesses it is at a tremendous disadvantage, and if the statements to be supplied to the accused have to he taken from the witnesses, why should those statements not be taken in the presence of the accused and his advisers? Why does it cause delay?
§ Mr. Lyttelton
Delays have been very great. I have nothing more to add to the reply that I have already given.
§ Mr. Hughes
On a point of order, Mr. Speaker. The right hon. Gentleman has made an imputation upon my knowledge of law and I should like to put a question arising out of that point. I want to ask the right hon. Gentleman—
§ Mr. Speaker
I do not think that any lawyer would take very seriously an imputation upon his knowledge of law.